PUBLIC COMMENT and, REQUEST FOR CORRECTION __________________________________________ IN THE MATTER OF: ) ) The U.S. Environmental Protection ) Agency Report: ) ) Draft Benthic TMDL Development ) Accotink Creek, Virginia ) June 2010 ) __________________________________________) Commenter:1 David W. Schnare, Esq. Ph.D. XXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXX [email protected] Disclaimer: These comments reflect my personal professional opinion and are not intended to represent the views of any organization with whom I am associated. Submitted to: Gregory Voigt Office of Standards, Assessment and TMDLs (3WP30) US EPA Region III 1650 Arch Street Philadelphia, PA 19103 215-814-5737 [email protected] Information Quality Guidelines Staff (Mail Code 2811R) U.S. EPA 1200 Pennsylvania Ave., NW Washington, DC 20460 [email protected] 1 NB, this public comment has been peer-reviewed by a qualified third-party with a Ph.D. in economics and who previously held a senior staff position in the Office of Information and Regulatory Affairs in the White House Office of Management and Budget. Copies to: The Hon. Douglas Domenech Office of the Secretary of Natural Resources Patrick Henry Building 1111 East Broad Street Richmond, VA 23219 [email protected] The Hon. David Paylor, Director Department of Environmental Quality 629 East Main Street Richmond, Va. 23219 P.O. Box 1105, Richmond, VA 23218 [email protected] The Hon. David Johnson, Director Department of Conservation and Recreation 203 Governor Street Richmond, VA 23219-2094 [email protected] The Hon. Rick Neel Deputy Attorney General Office of the Attorney General 900 East Main Street Richmond, VA 23219 [email protected] Mr. Bryant Thomas Virginia Department of Environmental Quality Water Quality Programs Manager – Northern Regional Office 13901 Crown Court Woodbridge, Virginia 22193 [email protected] Ms. Katie Conaway Virginia Department of Environmental Quality Regional TMDL Coordinator – Northern Regional Office 13901 Crown Court Woodbridge, Virginia 22193 [email protected] Mr. Craig Lott Virginia Department of Environmental Quality TMCL Modeling Coordinator – Central Office [email protected] - 2 - Executive Summary The Accotink Creek watershed is located in Northern Virginia within portions of Fairfax County, the City of Fairfax and the Town of Vienna. Bordering it on the west is the Pohick Creek watershed and to the north is the Difficult Run watershed. The U.S. Environmental Protection Agency (EPA or the Agency) has approved Total Maximum Daily Loadings (TMDLs) for both Pohick Creek and Difficult Run.2 EPA has properly identified portions of Accotink Creek as impaired because sediment in the water has settled onto the bottom of these portions of the creek, destroying the habitat of benthic organisms living there. EPA now proposes a benthic TMDL for Accotink Creek for the same reasons it approved one for Difficult Run. At EPA’s invitation, this comment addresses technical, statistical, data quality and related scientific mistakes in its report entitled, “Draft Benthic TMDL Development,” (hereinafter “the TMDL Report”) EPA has proposed to cure the benthic impairment in Accotink Creek predominantly through a limitation on the amount of water it will allow to flow into the creek, using the Municipal Separate Storm Sewer System (MS4) permit program as the means to limit flow. In essence, EPA has assumed that too much water flowing into Accotink Creek has caused erosion of the creek wall, creating high levels of total suspended solids which later settle onto the bottom of the creek (sedimentation), thus destroying the benthic habitat and some of those organisms. This comment will examine this assumption and identify various mistakes EPA made in concluding peak annual flow is the actual cause of the sedimentation and harm to the benthic habitat. While both Accotink Creek and Difficult Run are listed by EPA as benthic impaired waters, Pohick Creek, nearly identical in nature to the others, is not benthic impaired. Further, EPA approved a TMDL for Difficult Run that limits the amount of sediment in the water, rather than limiting the flow of water into Difficult Run. This comment will discuss the significance of the sediment-based approach as compared to a flow-controlled TMDL, demonstrating why EPA should use a sediment loading TMDL in Accotink creek as it did in Difficult Run. This comment addresses a large number of issues. Following this summary, the comment provides an Index to the issues that will assist comment reviewers. The issues addressed reflect six basic subjects: . EPA’s proposed TMDL is unwarranted by the facts. Among other things, the Agency based its selection of a flow-based TMDL on a mistake about the cause of benthic damages. If also misinterpreted and/or misrepresented historic flow information, resulting in a flawed TMDL proposal, and it failed to incorporate information it had regarding the size of flows associated with non-benthic-impaired streams. 2 U.S. EPA, “Decision Rationale Total Maximum Daily Loads For Polychlorinated Biphenyls (PCBs) Tidal Potomac & Anacostia River Watershed in the District of Columbia, Maryland and Virginia,” 10/31/2007, see, http://www.epa.gov/reg3wapd/tmdl/dc_tmdl/PotomacPCB/PotomacPCBTMDLDR.pdf; and, “Decision Rationale Total Maximum Daily Loads Aquatic Life Use (Benthic) Impairment Difficult Run Watershed Fairfax County, Virginia”, 11/7/2008, see, http://www.epa.gov/reg3wapd/tmdl/VA_TMDLs/DifficultRunBenthic/DifficultRunBenthicDR.pdf. - 3 - . EPA chose to use a “surrogate” TMDL (flow) criterion without presenting a rational basis as to why the surrogate (flow) is equivalent to or otherwise a reasonable substitute for the criterion (sediment loading) that EPA has routinely used in the past and which is available for use on Accotink Creek. EPA’s proposed the Accotink TMDL without properly observing procedures required by the President and EPA. EPA failed to examine whether the TMDL constitutes a significant regulatory action that is likely to result in a rule that may adversely affect in a material way State and local governments, or whether the TMDL raises novel legal and policy issues arising out of Clean Water Act (legal) mandates. The proposed TMDL does both and thus is a significant regulatory action that requires presentation of options analysis. EPA did not conduct the options analysis, much less presented it to the public for comment. EPA’s proposed restrictions on development within the Accotink watershed are in excess of EPA’s statutory jurisdiction, authority, and limitations; and are short of EPA’s statutory right. EPA seeks to replace local land use controls without authority and against EPA’s long-standing policy to preserve “the delicate balance created in the statute between protection of water quality to meet federal water quality goals and the management of water quantity left by Congress in the hands of States and water resource management agencies.”3 . Without observance of procedure required by law, EPA did not disseminate information in its TMDL Report that adhered to a basic standard of quality, including objectivity, utility, and integrity. EPA requires that each step of EPA’s development of information, including creation, collection, maintenance, and dissemination, must integrate these principles of information quality. The TMDL Report does not adhere to the basic standard of quality the Agency requires, as described in its own guidelines. Among other problems, EPA presented a flow duration curve (FDC) that cannot be reproduced using the United States’ (U.S. Geological Survey, National Water Information System’s) own data. Nor is EPA’s FDC analysis sufficiently transparent to allow a competent analysis to understand how EPA produced an FDC in variance with the underlying USGS historic flow data for Accotink Creek. According to EPA’s own rules, these and other mistakes require the Agency to fix the errors and reopen public comment on the TMDL Report thereafter.4 . The effect of the TMDL, and EPA’s intent to incorporate it into MS4 permits is contrary to Virginia’s Constitutional rights, powers, and privileges, a fact previously understood by EPA’s General Counsel. Because EPA’s analysis cannot be reproduced; because that analysis is at variance with high-quality information, because EPA fails to include in its analysis information it had regarding non-impaired streams with higher flows, because EPA mistakenly assumed peak flow 3 U.S. EPA, Memorandum from EPA General Counsel Ann Klee to EPA Assistant Administrator for Water Benjamin Grumbles, “Agency Interpretation on Applicability of Section 402 of the CWA to Water Transfers,” August 5, 2005 http://www.epa.gov/ogc/documents/water_transfers.pdf. 4 U.S. EPA “Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by the Environmental Protection Agency” October 2002, see, http://www.epa.gov/QUALITY/informationguidelines/documents/EPA_InfoQualityGuidelines.pdf. - 4 - is the predominant cause of the impairment; because EPA failed to meet its duties under the Information Quality Act; because the proposal extends EPA’s authority beyond permissible Constitutional bounds, and because EPA has drafted a proposal knowing most of these facts, EPA should address each of the issues raised herein and repropose a TMDL based on allowable sediment limits as it did in the Difficult Run TMDL. - Index to the Comment - I. Errors in Determining Causality of Benthic Impairments. II. Errors in Development and Presentation of Historic Flows A. Errors in Stream Flow Estimates B. Errors in Calculation of Flow Duration Curves C. Other Errors relating to the Accotink Watershed or the proposed TMDL III. Improper Use of the “Attainment” Streams IV. Improper Use and Analysis of a “Surrogate” Criterion A. EPA Provides No Reasonable Basis For Use Of A Surrogate And A Surrogate TMDL Cannot Guarantee Correction of the Impairment 1. The TMDL cannot guarantee correction of the Impairment 2. The TMDL Report lacks a reasonable basis for failing to consider alternatives to a flow-based TMDL and for failing to examine and discuss the implications of its proposal.